In the Court of Criminal 

Appeals of Texas

══════════

No. WR-72,123-03

══════════

EX PARTE KIP LEE BENTON,

Applicant

═══════════════════════════════════════

On Application for a Writ of Habeas Corpus

Cause No. 29901CR-C in the 40th District Court

Ellis County

═══════════════════════════════════════

YEARY, J., filed a dissenting opinion.

In this subsequent post-conviction application for writ of habeas 

corpus, Applicant alleges for the first time that the theory upon which 

his conviction for aggravated sexual assault depends was not included 

in the penal provision under which he was prosecuted as of the date of 

the charged offenses. Because we do not have a transcript of trial, we do 
BENTON – 2

not know for certain that the State’s evidence did not establish, as 

alleged, that the offenses occurred “on or about” the charged dates, but 

nevertheless after the new theory of aggravation was added to the penal 

provision. Dissenting Opinion at 5–6. For that reason, I too believe that 

Applicant has failed to show facts that would entitle him to relief.

I have elsewhere taken the position that an initial post-conviction 

habeas applicant “who can demonstrate that he is ‘actually innocent’ in 

an absolute sense” should be able to obtain relief—even if he remains 

guilty of a lesser-included offense—in an initial post-conviction 

application for writ of habeas corpus. Ex parte Warfield, 618 S.W.3d 69, 

74 (Tex. Crim. App. 2021) (Yeary, J., concurring). By actually innocent 

in “an absolute sense,” I meant it is clear that, under the prevailing 

penal provision at the time of conviction, the applicant’s conduct simply 

did not elevate his conviction to the greater offense, as a matter of law. 

In Warfield, we had not yet construed the statute at the time of 

conviction, but as we construed it later, it became apparent on the 

undisputed facts that the applicant had committed only a third-degree 

felony, not a felony of the second degree. Id. at 72. Here, Applicant 

alleges that the relevant change in law was prospective only, and could

not have applied to his conduct, which allegedly occurred “on or about” 

dates which preceded the statutory change. That would also constitute 

“actual innocence” in an “absolute sense” in my book, were the facts to 

bear it out. 

Had Applicant raised this claim in an initial application for writ 

of habeas corpus, then, and had he presented evidence to show that the 

State in fact could only prove conduct on his part that preceded the
BENTON – 3

statutory change, I would not hesitate to grant him some kind of relief

today. But I need not address whether Applicant should be able to raise 

such a claim for the first time in a subsequent writ application, since he 

has not been able to prove the claim in any event. Suffice it to say that 

I remain at least open to the possibility that, had he been able to 

establish a factual basis for his claim today, he would be authorized to 

raise it in a subsequent writ application under the auspices of Section 

4(a)(2) of Article 11.071, on the theory that his conviction not only 

violated due process, but also that, by even more than a preponderance 

of the evidence, no rational jury could have found him guilty of the 

aggravated offense beyond a reasonable doubt (or by any other level of 

confidence, for that matter). TEX. CODE CRIM. PROC. art. 11.07, § 4(a)(2).

Unlike Presiding Judge Keller, I would leave that question for another 

day.

That said, I am certainly inclined to agree with Presiding Judge 

Keller, for the reasons she gives, that even if Applicant were entitled to 

some relief, the Court grants him too much. Courts of appeals are 

authorized to reform trial court judgments to reflect conviction for a 

lesser-included offense by virtue of Rule 43.2(c) of the Texas Rules of 

Appellate Procedure: “The court of appeals may . . . reverse the trial 

court’s judgment in whole or in part and render the judgment that the 

trial court should have rendered[.]” TEX. R. APP. P. 43.2(c); Thornton v. 

State, 425 S.W.3d 289 (Tex. Crim. App. 2014). There is a comparable 

provision of general application—that governs this Court’s disposition 

of the several classes of cases that come before it—found in Rule 78.1(c) 

of the Rules of Appellate Procedure: “The Court of Criminal Appeals may 
BENTON – 4

. . . reverse the court’s judgment in whole or in part and render the 

judgment that the lower court should have rendered[.]” TEX. R. APP. P.

78.1(c). 

It can plausibly be argued that Rule 78.1(c) empowers this 

Court—and perhaps even requires it when appropriate—in disposing of 

post-conviction applications for writ of habeas corpus under Article 

11.07, to modify the judgment of the convicting court to reflect conviction 

for the lesser-included offense, and remand it for a new punishment 

hearing, rather than to order a whole new trial. The Court errs to grant 

Applicant a whole new trial without first tackling this issue and 

resolving it.

FILED: May 25, 2022

PUBLISH